Rules set for voter challenges

State officials offer some guidance on what to do to keep the polls running.

JONI JAMES
Published October 30, 2004

TALLAHASSEE - Hoping to ease rising concern over voter challenges, state elections officials on Friday released new guidelines for handling such challenges without delaying other voters.

The four-page memo from state Elections Director Dawn Roberts was an attempt to clarify a 109-year-old election law that in recent days has generated widespread anxiety about whether it would be used to deter voters.

The memo emphasizes that voter challenges must be resolved without delaying other voters.

It says that even if a challenge is successful, the voter must be given the option to file a provisional ballot. And it reaffirms that inclusion on a controversial state felon list is not sufficient evidence to sustain a challenge.

The new guidelines are the state's first formal response to concerns that the arcane poll watcher law has the potential to cause problems on Election Day. As recently as Wednesday, Gov. Jeb Bush said he didn't expect poll watcher challenges to be a problem.

"Everybody is more focused on this now days before the election," said Deputy Secretary of State Alia Faraj. "We wanted to make sure that supervisors are clear on the procedures outlined in state law. . . . It requires more than just (a poll watcher) pointing at someone in the precinct. There's a process in place."

Faraj said the memo, sent to county elections officials on Thursday, was written after repeated conversations with local election officials, who reported multiple inquiries from attorneys.

Republican Party officials have said they are considering having their poll watchers challenge felons or other voters they consider ineligible.

On Thursday, the GOP unveiled part of its research: a list of 921 felons that it thinks have already voted early or requested an absentee ballot in violation of state law. The list was culled from flawed state databases.

Roberts' memo brought praise from Democratic lawyers, who had strongly rebuked the office of Secretary of State Glenda Hood for a September memo that highlighted the rights of poll watchers to file a challenge.

Democrats thought that memo fell short on emphasizing precinct decorum and voters' rights.

"The most important thing is that they made it clear that the presumption is with the voters and their rights," said Mitchell Berger, a Fort Lauderdale lawyer who is general counsel for Sen. John Kerry's Florida legal team. "People sworn to uphold the law are now at least issuing memos that indicate closer to what the law actually is."

Mindy Tucker Fletcher, spokesman for the Florida Republican Party, called the memo "reasonable and balanced. If there is one thing we learned from 2000, it's that it's important to have the rules laid out beforehand."

Supervisors of elections appeared to welcome the advice as they braced for record numbers of poll watchers. By the end of the day Friday, more than a dozen counties had talked with state elections officials to say they planned to follow Roberts' guidelines.

"I'm glad that they gave us some guidance, that they provided some level of uniformity from county to county, which in 2000 was missing," said Pasco County Elections Supervisor Kurt Browning, a Republican.

State law allows each political party and candidate to post a single preapproved poll watcher at each precinct. They must be registered to vote in that county, and they cannot be a candidate or law enforcement officer.

While historically there to gauge voter turnout, this year some are expected to challenge voters.

Under state law, they must do so in a sworn affidavit. Election workers on site are then charged with deciding if the challenge if valid.

Public records show officials in Hillsborough County have approved 806 watchers; Pinellas, 616; Pasco, 120; and Citrus, 77. Hernando numbers were not available. Miami-Dade expects more than 2,325. Jacksonville's Duval has 959 signed up.

Roberts' memo recommended supervisors designate areas in each precinct where a challenge might be resolved, away from the table where other voters are checking in. It also spelled out that the poll watchers' challenge must be substantiated by evidence.

The memo also said that inclusion in the state's flawed felon voter database is not sufficient evidence. Hood discarded the list in July after critics found multiple flaws in the data.

If a challenge is successful, the would-be voter must be offered the chance to cast a provisional ballot, the memo said. That would allow a voter to appeal the precinct workers' decision before the county canvassing board, which reviews all provisional ballots before they can be counted.

Browning said it's naive to believe such guidelines, even if strictly followed, will maintain decorum.

"That sounds good, but you're in a polling place and your right to vote has just been challenged, what are you going to do?" Browning said. "Are you going to sit back while others decide your fate.

"I don't think so," he said. "You're going to get ticked. You may yell and stammer around the place and have your hands in the air and maybe use profanity. That alone is going to be disruptive."

Such concerns prompted Pinellas County Elections Supervisor Deborah Clark, even before Roberts' memo, to add a note at the top of a form that poll watchers will use to file challenges. It notes that it is a third-degree felony to falsely affirm an oath in election matters.

"I just want people to know that if they make this allegation, it's serious," Clark said. "If they willingly make it falsely, it's a felony of the third-degree."

Staff writer Michael Sandler and researcher Deirdre Morrow contributed to this report.Joni James can be reached at 850-224-7263 or jjames@sptimes.com